In what will no doubt come as a shock to many, there are people on Twitter who comment on policy matters, legal opinions, and news events without reading relevant materials or knowing much about the law. Such was the case in response to my assertion on Twitter that the President should, following the recent Supreme Court opinion in Department of Commerce v. New York regarding the census, continue with plans to print the census documents with a citizenship question and state publicly his simple explanation for doing so. Some on Twitter exploded with claims of my breaking my oath, ignoring the Constitution, and being a Trump “sycophant.” These claims are absurd, but the norm for Twitter, of course.
To be clear, I believe the President asking the citizenship question is not only correct, but it is the only thing to do if one believes in the Constitution and the rule of law. The Constitution requires that we conduct a census. We conduct the census every 10 years. It requires counting “persons,” but we have throughout our history counted persons and also asked other important questions, including citizenship. It is my belief we should ask that question, and according to reliable polling, 88% of Republicans, 67% of all Americans support the question being asked. Importantly, is the belief of the President and his administration that we should include a question asking about citizenship.
Doing so is important for numerous reasons. Getting an accurate counting of persons, and citizens, is important for re-districting, for allocation of federal dollars, for setting up voting locations, for making decisions about the impact of illegal immigration on American communities, and for, yes, administering the laws in accordance with the Voting Rights Act, among other reasons. It is also, arguably, constitutionally required to ask for citizenship. Yes, required.
If one only reads the census portion of the Constitution, it references counting “persons.” Fair enough, but there is no restriction on counting citizens, too. Importantly, though, if one reads section 2 of the 14th Amendment, you find that it, combined with the later passed 19th and 26th Amendments, creates a requirement that we know the total number of voting-age “citizens” in each state. This provision was to ensure enforcement of voting rights, and if you do not have citizenship data by state, you cannot enforce that section of the Constitution.
Now, regardless of the merits of the argument that it is required, in light of all of these things, it is important that the President defend the prerogative of the Executive branch, in accordance with the Constitution and the laws enacted by the Legislative Branch, and proceed to ask a common sense question on the census that the vast majority of Americans believe ought to be asked.
What did the Supreme Court hold? The Supreme Court expressly held that “[t]he evidence before the Secretary supported that decision” to include the citizenship question on the Census. As Chief Justice Roberts explained, there were “tradeoffs between accuracy and completeness” with each option the Secretary could choose. So the Secretary’s decision to include the citizenship question, the Court ruled, “was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.” Importantly, in doing so, the Chief Justice joined to reverse the District Court very plainly on the issue of whether the question can be asked
But Chief Justice Roberts, nevertheless, sent the case back for the Commerce Department to provide “something better than the explanation offered for the action taken in this case.” The Court importantly noted that “no particular step in the process [used by the federal government] stands out as inappropriate or defective.” But it held there was a “mismatch” between the Secretary’s decision “and the rationale he provided,” based on “DOJ’s request for improved citizenship data to better enforce the VRA.” So if the Secretary gives a proper explanation, it would be completely lawful for the federal government to include a citizenship question on the Census.
The Chief Justice – and thus the Court – essentially said, “it ain’t what you said, it’s how you said it.” In essence, the Court invited the President to ask the Secretary to proceed, to ask the question according to his belief it is in the best interest of the nation, and simply to provide a better explanation. It is not evident that this explanation needs to be complex, but that it needs to be clear and not “pretext.” This is why the explanation should be closer to “because it’s in the interest of the nation” than it should be an over-lawyered rationale.
That is what the Secretary, on behalf of the President and the American people, should do. And then we should get busy counting.
Chip Roy represents the 21st Congressional District of Texas. He is a former Special Assistant United States Attorney, First Assistant Attorney General of Texas, and Counsel to the U.S. Senate Judiciary Committee.